医疗侵权的归责原则探析

国外有关医疗等服务业的立法,除对高度危险作业如航空业采用无过失原则外,对其它服务业很少有采用。在英、美等国判例中,分专门职业人员之服务性的医疗行为责任和商业上的交易性医疗行为责任,在这两种医疗行为中又分单纯的医疗行为责任和混合医疗行为责任,而采取不同的态度。对医师的责任应以过错责任为原则。对混合医疗中,因药品或医疗器械的原因造成的损害,医师应承担替代责任。对医师无过失患者造成的损害,可借鉴相关国家的制度,建立无过失补偿制度。

Discussion of imputation principle on medical tort

In foreign countries, the principle of no fault compensation is rarely applied to service industry involving medical service except for highly dangerous job such as aerial working. In the USA and UK, medical behavior liability can be divided into two, one is for professional's service, the other is for commercial transaction, both of which are furtherly divided into pure medical behavior liability and mixed liability. Doctor's liability should follow fault liability principle, however, for damages due to medicine or medical materials in mixed medical behavior, doctor should take vicarious liability. A no fault compensation system should be set up to deal with the damages to patient when doctor has no fault according to other countries' experience.